Town Square

The 90-year-old driver of a car that reportedly pinned two 6-year-old twin brothers against a wall on Santa Cruz Avenue has denied all responsibility for the resulting injuries, claiming the children were engaged in behavior that was reckless, careless and negligent.

Posted by what does sidewalk mean
a resident of Menlo Park: Downtown
on Dec 31, 2013 at 8:18 am

The boys were walking on the sidewalk right? The SUV jumped the curb and nailed them. How is this possibly defensible? The driver is a lawyer and knows exactly what he is doing by accusing the victims.

This is wrong in so many ways. The guy jumped a curb and pinned one kid to the wall of CVS. When he got out of the car, he was so frail that he could barely walk. Not surprised to find out he's 90. He should not have been driving.

Of course, he knows that he was wrong. However, he's doing the classic lawyer technique of punch back hard/scorched earth. Rather disgusting.

I can generalize a lot about this situation (i.e., lawyers, older drivers, etc.) but won't. Rather, will save my ill feelings for this individual and his pack of lawyers. Duly noted.

According to the druver's statement " The kids were acting reckless."
What about the nanny's responsibility? I do not think it was the boys' fault exactly but if she saw what was going on and the two boys that were not harmed seriously shouldn't they tell the court their sides of the story?
The major culrprit was the driver. 90 years old and barely able to walk?

it's one thing to have your lawyer write that for you, but it will be quite another when he has to explain that in a video taped deposition or in front of a jury without turning beat red because he know's he is lying. chances are he'll settle before then for that same reason.

Posted by Fred
a resident of Atherton: Lindenwood
on Dec 31, 2013 at 12:00 pm

I like the juxtaposition between the driver's statement and the picture of his car jumped up on the sidewalk and crashed into a wall. One would think 90 years would be enough time for a person to learn to take responsibility for their actions.

Posted by Shame on you!
a resident of Atherton: West Atherton
on Dec 31, 2013 at 12:25 pm

Yes, Mr. 90-year old driver - shame on you. Little six-year-olds still have their baby teeth, believe in Santa Claus and all the "magic" of a child's world. How, in your counter defense, can you possibly accuse them of reckless behavior? Don't try to put an old mind on the shoulders of babies!!

Amazing! There used to be a time when people took responsibility for their actions. One would think a 90 year would still live in those times, maybe his former profession changed that. It is shameless that he is trying to pin the blame on these children. If he could barely walk, why in the world did his family let him get behind the wheel of a car to begin with?

Posted by kd94025
a resident of La Entrada School
on Dec 31, 2013 at 12:42 pm

OK - Look - the only way this could have happened at that spot was that he was in a parking spot and jumped the curb, likely doing what many elderly drivers end up accidentally doing, which is pressing the accelerator instead of the brake, and panicking - or he was pulling in trying to park and didn't stop. Walgreen's is in the middle of the block. I find it absolutely loathsome and astonishing that someone could accuse innocent people standing by of negligence because they didn't jump out of the way, let alone reckless behavior! Good lord. ("Well, you were outside. The risk of continued existence is all on you!") All three children were traumatized (as was their caregiver!). I urge people to honestly assess their driving ability as we all age and lose our good reflexes and concentration. Sadly, 90 is likely pushing it.

Posted by seenitall
a resident of Menlo Park: Downtown
on Dec 31, 2013 at 12:55 pm

If you are staring the grim reaper in the face as this 90 year old clearly is... do you really do something like this right before judgement day? Not a lot of time to make up for it. Not sure it's even possible.

Guys, do not take what he said in the brief seriously. This is just legal posturing. The family want to sue him for everything he has, and his insurance company, so his legal team counter back with 'serves you right, you brought this on yourselves'.
It's all a prelude to the negotiations for a cash settlement. The old lawyer may not have even seen the response.....
no need to get worked up. The family will get justice.

Posted by John
a resident of Menlo Park: The Willows
on Dec 31, 2013 at 1:51 pm

Although I fundamentally support the right of representation within our legal system, the choice of his legal team, Pedersen Eichenbaum & Lauderdale of San Jose and Dyer & White in Menlo Park, to take this approach in a case involving critical injury to children is nothing less than despicable. Take this case as a law firm? Maybe. Decide to go down this path to litigation? Shameless! Is it even remotely possible that they have children of their own? Please join me in doing everything in my power to spread the word far and wide of the disgusting tactics of these two firms, Pedersen Eichenbaum & Lauderdale of San Jose and Dyer & White in Menlo Park, and their obvious indifference to the safety of our community's children!

Posted by marilee gardner
a resident of Atherton: West Atherton
on Dec 31, 2013 at 2:05 pm

Unless those 6 year olds ran out onto the street, grabbed the defendant's car, pulled it onto the sidewalk and then forced the driver to run them into the wall.....i just cannot imagine what "reckless" could possibly mean. Can't anyone take the responsibility for his actions anymore? It seems obvious that the driver missed the brake and hit the accelerator. Just do what is right and don't force the parents or, more horribly, the children to go through anything more. Shame on Edward Nelson and shame on his attorneys who have taken on this ridiculous suit.

Posted by David B
a resident of Portola Valley: Central Portola Valley
on Dec 31, 2013 at 2:33 pm

This is just how our legal system works. Suit, aggressive defense, countersuit, and eventually a settlement negotiated with the insurance companies. We don't know whether the victims' suit included any outrageous demands for pain and suffering compensation, but that would be part of the formula also.

Posted by mainstream
a resident of Atherton: other
on Dec 31, 2013 at 3:47 pm

I would love to see this article make it to all the local and national stations to show how money hungry these attorneys are to skew the facts of a tragic accident to make their client out to be the saint in this…

Really???

Must be nice to skew the facts so out of sorts just to make your firm money….

It's just lawyer-speak. Throw every known legal defense even if it isn't plausible.

In the end the defendant has no defense but his and the insurance company's lawyers have a duty to defend or they can get sued by him. Don't forget the defense attorneys get paid by the minute. They get paid for every second they spend on each pleading and response, no matter how ridiculous sounding they may be.

Let's hope that someone can get the state to reexamine how they handle driving privileges for the for the elderly and others with impaired driving skills. One day we will all end up with the necessity to hand in our diving licenses for the safety of others.

Posted by Shocked
a resident of Menlo Park: other
on Dec 31, 2013 at 6:32 pm

This guy's response will die before a jury. I have a 89 yr. old father, a 91 year old father-in-law, and two friends in their 70's....all of whom scare the s*** out of me when I drive with them. Reflexes are slow, they can't hear, and their minds wander. This case most definitely suggests that anyone over 70 should get a YEARLY driving test!!!

Posted by Downtowner
a resident of Menlo Park: Downtown
on Dec 31, 2013 at 6:49 pm

Whether it's all part of "the game" or not, Nelson & his attorneys should be ashamed. I wish upon them universal shunning by all who know them.
A 90 year old who can't walk without a walker & his crew blame the victims for reckless behavior? I guess every pedestrian who uses the sidewalks on Santa Cruz Ave is also reckless? Nelson et al are disgusting.

Edward Nelson should be ashamed of his criminally negligent driving and his brazen attempt to escape responsibility for the crime by casting doubt about the actions of the victims. Since I wasn't there I won't speculate about the causes of the accident, but it is obvious that no amount of carelessness or recklessness on the part of the children would result in them being struck on the sidewalk and pinned between the car and the building. Mr. Nelson's statements indicate either a complete lack of remorse for his actions or a complete lack of understanding of what occurred that day and either way it shows clearly that he is still a danger to our community.

Posted by Donald
a resident of another community
on Jan 1, 2014 at 9:46 pm

Unfortunately, the only crime that Mr. Nelson can be charged with is driving on the sidewalk. The penalty for that is puny and will not help the family of the injured boys, which is why they are suing him.

Legal system aside, in the court of real life this is just wrong. Mr Nelson smashed his car into the lives of that family and their caregiver and one child has been through unimaginable pain and surgeries nobody, especially a 6 year old ever should endure. To this day Mr Nelson, who by the way is a landlord to many readers here in MP and PA, has not apologized, expressed any regret or shown Any remorse...at all! He continues now to smash his car further thru this community with his actions. It's appalling and unacceptable.

Tick tock Mr. Edwards...tick tock! Is this really how you want to end your life? You squished two little children and refuse to take responsibility? I wouldn't want to be you in the next few years. Karma isn't a lot of fun, and you're going to see that very soon unless you do the right thing and make things right with those babies . Good luck with that!

As a preface, I don't think this man should be driving or should be allowed to retain his license. This accident occurred only because he was not competent to be maneuvering a lethal vehicle through crowded city streets.

That said, to impute a higher level of morality to Edwards because he's going to have to face the music soon is just plain silly. His legal recourse would be similar if he were 18 years old.

What is playing out here is a tightly choreographed dance between the insurance companies. It's not about sinning or dispensation or any of the other quasi-religious concepts that some of you keep throwing into the mix.

Try to take another perspective. Here's a retired, unhealthy man who is probably living off his investments and retirement funds. If he did not defend himself against this suit -- which some of you apparently think should be his response?!? -- he could lose every penny. There's nothing that can undo the damage inflicted on the brothers or their family, but forcing an old man into poverty won't heal anyone's pain. I guess it's a measure of the holy roller mindset among some of you on this board that you dare criticize anyone for making an appropriate legal response to the suit.

Posted by Menlo Voter
a resident of Menlo Park: other
on Jan 2, 2014 at 2:20 pm

Confusion:

while this may be "appropriate legal action" it is an immoral action. It matters not whether he was 18 or 90. To try to blame the victim in this case is just plain wrong and Mr. Nelson should be ashamed of himself for allowing his attorneys to respond in this fashion.

If he wants to blame someone besides himself, I could see the possibility of making a case against BMW for making it impossible for an idiot to drive his car up on to a sidewalk and crash it into two children. Or maybe a case against the city for not putting up barricades so said idiot couldn't run his car into innocent pedestrians on a sidewalk. A sidewalk where his car never belonged. I see absolutely no, even remotely nuanced argument, that can be made to blame the victims in this case. They were walking down a sidewalk where they had every right to be and where Mr. Nelson in his vehicle did not.

To claim the victims in this case are somehow responsible is simply disgusting and immoral. If the man had any shame at all he would have told his attorneys this was not an acceptable claim to make as a defense. Clearly he's not ashamed and wants to blame someone else for his inability to control his vehicle.

As to the religious aspect, that's between him and whatever power he does or doesn't believe in. It doesn't belong in this discussion and bears no weight on my opinion of him or his actions.

Posted by This isn't okay
a resident of Menlo Park: Central Menlo Park
on Jan 2, 2014 at 3:34 pm

The contact information for Nelson and his lawyers at Pedersen Eichenbaum & Lauderdale of San Jose and Dyer & White of Menlo Park are all available online. Please join me in letting them know how shameful and ridiculous they are while they play their silly (and lucrative) legal games.

If I had the skill, I'd put their pictures up on flyers all around town or online. Maybe someone else can.

Posted by POGO
a resident of Woodside: other
on Jan 2, 2014 at 4:00 pm

While I agree that the response from the driver's attorney was ill advised (to say the least), instead of trying to publicly ridicule a 90 year old man, why not let justice take its course?

I have faith that the justice system (not to mention this driver's insurance company) will provide some measure of compensation. Of course, for an injured child, money alone will never provide sufficient compensation. Unfortunately, there isn't anything else you can sue for.

In the interim, I hope the driver's family will take the keys away. The only thing worse than this accident would be repetition.

2. The family is suing the driver, ie his insurance company, to get money they believe is owed them.

3. The insurance company's legal department has filed a countersuit to minimize its outlay.

This does not mean the driver is evil or any more likely to encounter bad karma than the rest of us. He may be. He may not be. But some of you are making this legal-insurance issue into a personality test with religious overtones. It's just how our legal system works. I'm surprised that so many highly educated residents of this area don't already know that.

the quotes from the article, "carelessly, recklessly and negligently conducted and maintained themselves" and "knowing the probable consequences thereof, (they) placed themselves in a position of danger and voluntarily participated in all the activities", are taken from nelson's answer to the original complaint - both of which are pretty boilerplate. folks here are reading into these standard affirmative defenses a bit too much.

Posted by Menlo Voter
a resident of Menlo Park: other
on Jan 2, 2014 at 5:37 pm

pvrez:

perhaps people are making a big deal out of these "boiler plate responses" because we're all becoming thoroughly disgusted by the current state of jurisprudence in this country. The first thing anyone does when they screw up is try to deflect responsibility instead of stepping up. It didn't used to be that way.

Menlo Voter has it right about our state of jurisprudence. I can't imagine that Mr. Nelson would have voluntarily offered to help the injured party with some reasonable settlement for the pain and suffering he caused. This most likely forced the family to take legal action. At this point it becomes a legal game with the attorneys of both sides trying to get the "best deal" for their clients. I have no idea how reasonable the families demands are but Mr. Nelsons response, or rather his attorneys strategy, are still despicable.
I think a much better response on his part would have been to accept his responsibility, apologize to the family and let a jury decide fair compensation.
I wonder if the owner of the damaged building is also being blamed for carelessly, recklessly and negligently obstructing Mr Nelson's joy ride across the public side walk?
Yes many senior drivers should not be operating automobiles and it is their and their families responsibility to call it quits when the time comes.
I myself welcome my bi annual driving tests (I'm in my eighties) and have voluntarily restricted my driving to daylight hours.

Thanks for the correction -- I should read the original article more carefully before I allow myself to get carried away by the comments. The points remain unchanged, as pvrez notes. This is SOP. Maybe the following comment from the PAW TS will get the message across:

"The language...quoted is the standard language which is used in any answer filed by any defendant in a negligence claim. California law follows a system of contributory negligence, and if you don't raise it in answer to the complaint you have waived it. The attorneys who represent Mr, Nelson, almost certainly hired by his insurance company, would be guilty of malpractice if they did not include this language, and it is always included.

We have no way of knowing why this case has not been settled, or who, if anyone, is being unreasonable in the process. The author of this article should learn a little more about the legal process, however, and not make standard legal language, found in every form and legal process book in California, into a scandal. Shame on the press, in this situation."

Posted by Cut it out
a resident of another community
on Jan 2, 2014 at 7:54 pm

Unless he wishes to waive his coverage (something no poster here would do), the insurance company calls the shots, not the defendant.

Without taking anything away from the horrible experience suffered by the victims, the parents are asking for punitive damages, something that would apply if the driver did this on purpose. I don't think this is the case. Their theory presumably is he should have known that his age-related infirmities would lead to something like this and therefore it was willful. This is also an aggressive position.

There are at least a dozen other ways to raise those issues in a response without blaming the kids and still preserving your legal rights. He and his lawyers absolutely did not have to phrase things in such an inflammatory manner.

Posted by Lack of Decency
a resident of Menlo Park: Central Menlo Park
on Jan 2, 2014 at 9:26 pm

CUT IT OUT

You seem to be forgetting all about human decency. You are defending reprehensible actions on the part of Nelson, his attorneys his insurance company and his heirs.

Where is your sense of what is right vs. what is wrong (in this case everything from an old man incapable of driving (and he didn't just lapse into that condition moments before the accident) to the subsequent response by Nelson, his attorneys, you, and CONFUSION. You are all concerned only with your personal wealth. Enjoy it in the afterlife.

Posted by Lack of decency
a resident of Menlo Park: Central Menlo Park
on Jan 2, 2014 at 9:29 pm

Menlo Voter

You nailed it. Just as in so much of the rest of society nobody is willing to take responsibility for their actions.............. they feel better if they blame someone else (even if it doesn't work they feel better.

Posted by Menlo Voter
a resident of Menlo Park: other
on Jan 3, 2014 at 6:59 am

Hmmm:

until it takes a drivers license to start a car surrendering ones license doesn't stop one from driving. Given this guy's apparent lack of remorse and his willingness to allow his legal team to make such disgusting accusations, I wouldn't be a bit surprised if he still gets behind the wheel.

You express sympathy - now do something about it. Rally your neighbors to write emails to the despicable attorneys, post your disgust on blogs - TAKE ACTION. Make a difference. Don't just say you care.

This man is entitled to legal representation, just as everyone is. The lawyers are doing their job. What's despicable is to suggest that it's ok to harass them because of their refusal to make moral judgments.

Besides -- they're not defending a serial killer but an old man with poor judgment and probably too much arrogance. Sounds like a lot of people around here! Who appointed you all judge and jury? It's scary to think that I live among the likes of you.

Posted by POGO
a resident of Woodside: other
on Jan 3, 2014 at 10:19 am

Question: Would you want your insurance company to defend you? That's what they do. The attorneys in this case are doing their job and the insured rarely (if ever) has any role to play in that defense.

Several posters have this right, this is no more than a standard defense response to a legal complaint. Although I'm using a criminal court comparison, the insurance company's response is no different than an obviously guilty party pleading "not guilty" at their arraignment. The victims are horrified, but that's the defendant's right. The plaintiff has the burden of proving their case.

I certainly agree with those who worry about a 90 year old man driving a car. But no one knows the entire story yet and I suggest that we be patient. While this incident appears to be very straightforward, the man is entitled to all of the protections afforded to him by law and to a legal defense. Let's refrain from lynching anyone (including attorneys) just yet.

This accident happened in October. For some to expect it to have settled by now is absurd. This case will litigate for months, perhaps years. And it will ultimately settle with the insurance company paying the victims a very large amount of money.

Let's just hope this guy isn't continuing to drive. Just because someone surrendered their license doesn't mean they're not driving the car next to yours.

You are both (Pogo and Reckless) likely attorneys. You want to fall back on what has become the norm. While I am not suggesting lawlessness I am suggesting that the old man should "MAN UP" and admit to his misdeeds and thereby avoid further scarring to the children, their family and friends. Where is your sense of decency? It has apparently fallen by the wayside as you pursue your quest for money. I suspect that you feel good that every year you make a contribution to some charity. Where has the sense of right and wrong gone (you would quote me the law)? Pathetic.

Posted by easy now
a resident of Portola Valley: Central Portola Valley
on Jan 3, 2014 at 11:14 am

@Reckless- from a theoretical and moral perspective, you may very well be on the right track. however, in practical reality, civi lawsuits are about business and money, no more, no less. while standard legal language may offend some, it is unlikely that it represents nelson's real feelings in the matter.

Posted by POGO
a resident of Woodside: other
on Jan 3, 2014 at 11:32 am

Reckless, you definitely have an appropriate pseudonym. Using your logic, why not just hang 'em all? After all, you know the facts, you've determined guilt. Just take the next step and tell the insurance company how much to pay and let's be done with it. Why bother with discovery and due process when "Reckless" has the answers!

Civil law suits are about money, not morality. Legally, you can't even order someone to issue an apology, only a check. In this case, that check will come from an insurance company that was foolish enough to insure a 90 year old driver.

And I don't think the victims are being "scarred" by this lawsuit. This is simply a battle between insurance companies - nothing more, nothing less. If you've ever been in a car accident, I doubt that anyone consulted you about the subrogation process or any lawsuits between the insurance companies that followed. Unless the insured is willing to settle the matter on their own (and ignore their own insurance coverage), it's simply not their call.

Thank you, pvres, for posting Case CIV525266 and link Web Link
I am familiar with the principle of comparative negligence.
I once served as foreman on a jury in a case involving a rear-end accident. I always thought that the rear-ender was at fault. Not so. The defense attorney argued that the woman who slammed on her brakes when she saw some children skipping along on the sidewalk leading to the intersection(but not in close proximity thereto), was negligent. The jury agreed. No punitive damages were awarded.

In this case you have presented an oxymoron (civil and in this case lawsuit). Clearly Nelson and his agents are not acting civilly. Why does everyone need to hide behind money and lawsuits? What happened to the days when people took responsibility for their actions? You are so optimistic about Nelson's real feelings. He is a greedy self-serving old man who can care little about anything other than his money. He must MAN UP and accept his responsibility.

I hope everyone in our community feels better knowing that Pogo and Jack can recite legal principals. This is precisely why our community is in such disarray - good people have forgotten how to act good.

All that you have said is true about legal principles (I assume).

To say that this family has not been scarred is pure denial on your part. Have you seen either child? Do you think that they are unable to read and comprehend that someone has told them (in the paper) that it is their fault? You live in a bleeding fantasy. You should be ashamed.

While you and your profession seem eager to accept this type of behavior, thankfully most in our community are not accepting.

If old man Nelson or his heirs had an ounce of decency they would at least apologize for the pain and suffering that has been inflicted as a result of their actions/inactions.

Posted by David B
a resident of Portola Valley: Westridge
on Jan 3, 2014 at 12:50 pm

Every one of us, either defending our own assets or the assets of our elderly parents, would, on the advice of our lawyer, file the same response and do EXACTLY the same thing.

And no, you would not apologize at this point in the process:

From the Yale Law Journal: "While victims first and foremost want apologies, the defense lawyer's
position always is to not make admissions of any kind for fear of hurting the case, or at
most to issue a non-apology saying you are sorry that this tragedy occurred, which is not an
admission." Cite: Robin Topping, Attorneys Balance 'Safe' with 'Sorry,' NEWSDAY (N.Y.), Feb. 4, 2004, at A22, quoting a sociology professor and two prominent criminal defense attorneys.

I think we learned about due process sometime around the fourth grade. And then again in American History (for those of us who went to high school in this country). No need to earn a JD to understand the basic principles.

Reckless, very funny. Do you think that civil aviation and the Civil War have anything to do with civil behavior? I encourage you to look up the multiple definitions of the word, and also consider how "civil" is used in a legal sense.

Without knowing any of the parties involved (or their lawyers) we can be pretty sure that all were permanently scarred by this accident. But that's irrelevant to this particular suit. Some of you refuse to accept that this is a legal issue, not a moral one, or pretend to not understand. But like it or not, this is a society with a legal foundation, and individuals don't get to pick and choose which laws they like and which ones they prefer to ignore. You'll want a totalitarian government for that.

Posted by POGO
a resident of Woodside: other
on Jan 3, 2014 at 1:14 pm

I never said the victims weren't scarred by the accident. Clearly, they were severely and tragically injured. What I said - in response to a "reckless" assertion about the impact of the LITIGATION - was "I don't think the victims are being "scarred" BY THIS LAWSUIT." Of course, feel free to twist words to conform to your opinion. Just don't wrongly attribute them to me.

Can you please tell the rest of us why Mr. Nelson "is a greedy self-serving old man who can care little about anything other than his money?" Unless you know him or have met with him, how you can make such a statement? If you base such an absurd conclusion on the attorney's response, perhaps you should note that the attorney who filed that response likely represents the insurance company and answers to them. Mr. Nelson may not even be aware of their actions.

No, I am not an attorney.

As a matter of fact, I don't sleep well but it has nothing to do with this case and more to do with my age and gender.

And my comparison of this civil defendant's reply to a criminal defendant's plea of "not guilty" was a comparison, not an oxymoron. (No, that would be too easy...)

Why are you so unwilling to take responsibility for your actions? Why is Nelson so unwilling? He doesn't know what his attorneys are doing......... Likely true - he doesn't even know how to drive a car.

Are you afraid that you may be creeping up on this magical age and you don't want to accept responsibility for yourself and make the decision to stop driving?

Nelson was not a criminal, but what he is doing now (or allowing the attorneys to do - for which in your mind he bears no responsibility) is certainly a shame.

Posted by Boardermom
a resident of Woodside: Emerald Hills
on Jan 3, 2014 at 2:02 pm

Whoa, whoa, Menlo Park readers. It's always better to be informed before spouting off about legal this and legal that. First, I am a lawyer so give me some credibility on all this. Obviously, an accident like this horrible and tragic. The physical and emotional injuries are serious and likely will be with all parties for the rest of their lives. The driver most likely is negligent--which is nothing more or less than failing to acting with the same level and care as a reasonable person in a similar situation. He doesn't have to be found crazy negligent to be liable, just negligent. Driver hitting children on a sidewalk, probably negligent. That said, however, as an auto insurance policyholder, he is entitled to a vigorous defense, same as you and me even if we accidently rear ended someone in a fender bender on ECR. The family filed their legal complaint pretty quickly, within 90 days or so of the accident. California law allows 24 months to file for a personal injury lawsuit. Once the complaint is filed, the defendant has 30 days to file an answer and include any affirmative defenses he or she may want to assert at trial, if it gets to that. A good lawyer will assert every affirmative defense that may possibly be applicable, because to do otherwise would be professional negligence, often referred to as legal malpractice at cocktail parties.
At this stage, the full extent of the plaintiffs' injuries are not known, the full set of facts are not known and it is possible that the plaintiffs will include additional defendants to the case. A good defense lawyer will investigate a case fully before recommending a settlement. While it may look like running up a bill to someone else, it is not. It's called good lawyering. My guess is the case will eventually settle, but it will take a while for a variety of reasons, none of which have to do with the insurance company not wanting to pay or the defendant not wanting to accept responsibility. As my spouse, also an attorney, says "No one likes an aggressive lawyer, until they need one."

@Reckless- i am not a lawyer, but have enough real world experience to play one on tv. and i hate to break it to you, but YOUR moral ideals don't apply to the reality of this litigation like it or not. by the way, what color is the sky in your world?

Posted by a question of reality
a resident of Menlo Park: Central Menlo Park
on Jan 3, 2014 at 3:24 pm

Boadermom, Confusion and others emphasizing the legal realities of this case, thank you. That perspective is needed, and I think it's foolish to dismiss these points out of hand. But here's where the "legal reality" argument breaks down for me:

Boardermom says "A good lawyer will assert every affirmative defense that may possibly be applicable, because to do otherwise would be professional negligence." The key words are "may possibly be applicable." Can you explain how claiming that 6-year-old children walking on a sidewalk are being reckless, careless and negligent might even remotely be defined as an "affirmative defense" that may possibly be applicable as a defense that any sane person could take seriously?

The attorneys in this case blew it. Yes, they had to come up with possible defenses to serve their client. But the bad will they engendered in their choice of defenses in this heartbreaking case is toxic. How do they think a judge and/or jury will react to such cruelty? And if the assumption is that it will be settled out of court, well, maybe. But if I were a parent of these children, my outrage over this legal defense might just make me dig in my heels and refuse to settle out of court.

In her original story, "Lawsuit filed against driver who struck 6-year-old twins" Web Link Sandy Brundage leaves out the inflammatory detail of the lawsuit which states: "...as a direct and legal result of the negligence, carelessness, willfulness and recklessness of the defendants...". Makes it sound pre-meditated.
In this story, Sandy extracts the inflammatory detail from the defense attorney's "Answer to Complaint" and puts it in the first paragraph.
I can understand how such bias can happen with heart-wrenching stories, but that doesn't make it right.

Posted by a question of reality
a resident of Menlo Park: Central Menlo Park
on Jan 3, 2014 at 4:31 pm

Jack, the plaintiff's complaint really did use boiler-plate language for this type of lawsuit -- nothing surprising, nothing unusual. Are you suggesting that the driver's response is typical? It's not something worth reporting when a driver claims that 6-year-old boys have behaved recklessly, carelessly and negligently when they got in his way as he drove his SUV up on a sidewalk in downtown Menlo Park? That's not a significant part of the story? Let's be reasonable here, shall we?

Boardermom Pogo & co, are you seriously saying the law demanded that such inflammatory language, and only such words, could be used in the driver's response?

Come on. We all know that is not true. Even the earlier quote from the law journal above suggests there is room for other responses... "at most issue a non-apology that you're sorry this tragedy occurred which is not an admission"

You know what's missing in the driver's response? ANY indication he's sorry this happened even if it wasn't his fault. And by the way, there are plenty of legal responses that do not accuse the kids of being responsible without admitting his own culpability.

Stop making this an either/ or situation. They chose this scorched earth approach; they had options.

@Oh please- you are quite the expert. i would love to read the version of the answer you would file. care to take a shot and share your alternate options here for us to enjoy.... no need to rewrite the whole answer, maybe just the first affirmative defense with the language you don't like would be enough to make your point.

"Doctrine of Comparative Negligence: Defendant asks the court and jury to consider the relative damages and conduct of all parties, including the plaintiffs... and reduce damages based on relative fault"

Versus, in this suit:

"... the Plaintiffs so carelessly, recklessly and negligently conducted and maintained themselves so as to cause and contribute in some degree...under the doctrine of comparative negligence."

Same affirmative defense. See the difference now?

You have to raise the issue. You don't have to be a jerk about it.

That point aside, there are hundreds of affirmative defenses and whether it was a wise choice to raise those specific defenses opposed to others in these circumstances is a separate matter.

Posted by POGO
a resident of Woodside: other
on Jan 3, 2014 at 9:41 pm

"Pogo & co, are you seriously saying the law demanded that such inflammatory language, and only such words, could be used..."

No. I said no such thing and although she is obviously very capable of speaking for herself, Boardermom said "...a good lawyer will assert every affirmative defense that may possibly be applicable, because to do otherwise would be professional negligence, often referred to as legal malpractice at cocktail parties." I couldn't agree more. It's not the job of the defense to make the plaintiff's case or to concede any points especially at such an early stage of litigation. Although clearly troubling, this driver is no less worthy of a defense than you or me when we may have caused an accident. And if we are insured, our insurance companies will be managing our litigation, not us.

And, I'll bet this law firm was selected by and reports to the insurance company, who is charged with defending their insured. I'd be very surprised if the insured is even aware of the legal filings. To assert that the driver is making this charges is absurd. This is lawyer-talk, plain and simple.

My point has been that this case will take quite some time to be adjudicated or settled. There is simply no need to dissect every legal filing and hold the attorney accountable if their text doesn't conform to your idea of fairness. That's not their job.

My own single experience with insurance company-selected legal counsel & response was that a minority associate or paralegal was instructed to prepare the initial response from a huge array of boilerplate & was not even be familiar with the particulars of the case. Perhaps that's why Nelson has his own counsel as well.

I strongly agree that the language published here which accuses small pedestrians on a sidewalk of reckless behavior which apparently enticed an extremely mature & physically infirm vehicle operator to ignore a curb & smash them against a building is extremely offensive & insulting to the victims and their family.

Fogo, you seem to be quite keen on letting everybody know how intelligent you are. You've even gone so far as to tell us that somehow the length of time it will take to adjudicate or settled this has something to do with something. Thank heavens for others in this community who feel the same sense of outrageous as some of us. Your kindhearted approach to these attorneys who you imply are only doing their job is unbelievable to me.

So many of you seem to be enamored with showing everyone else how much you know about the legal system. You've missed the point completely - this is not about the legal system this is about being a good human being or being a bad human being. There was a day and time when people had pride in what they did. I would've said it would be hard to imagine that Nelson and his two attorneys could be proud of anything, but after seeing this string of posts on this website I can believe anything.

Boardermom,
I'm proud of you and your ability to recite legal principles. You seem credible to me. You must also truly be a great attorney because you've gone to great lengths to protect your profession. That's the whole profession that seems to believe that this situation is just normal and fine.

It makes me sick to think that you even imply that the family of these victims was possibly wrong to file their suit as quickly as they did. You are nothing but……… an attorney.

So many of you attorneys and attorney types and supporters of Mr. Nelson have implied that he's not culpable in this defense because his insurance company has taken over. Come on. You're certainly right the insurance company has certainly hired at least one set of attorneys. Who does the other set of attorneys work for if not the insurance company???????? Likely poor mr Nelson.....

The bottom line is if Mr. Nelson had any spine and any sense of right and wrong he would call his insurance company and demand or request that they make a settlement offer and if he were a real HUMAN he would have
offered to fund at least part of that settlement. He could at least demand humane treatment of the victims.

@Oh please- your alternate affirmative defense sounds reasonable enough. maybe one of the attorney readers could chime in and verify it would do the same thing as you say.

@Reckless- your line of Pollyanna reasoning in your last few posts is so far out there it's comical. you have no way of knowing what nelson has or hasn't done in this case - you've completely discredited yourself and your moral righteousness is nauseating.

Posted by POGO
a resident of Woodside: other
on Jan 5, 2014 at 10:10 am

Reckless -

You want to know why the lawsuit isn't scarring the two children? It's because they are SIX YEARS OLD. I doubt they are wringing their hands over the content of these legal pleadings.

You said: "Thank heavens for others in this community who feel the same sense of outrageous as some of us. Your kindhearted approach to these attorneys who you imply are only doing their job is unbelievable to me." You may wish to actually read my posts before commenting on them. "Kindhearted?" Seriously? I said no such thing. In fact, my very first comment on this thread was to note how "ill advised" those attorneys were. But I'm more outraged by citizens who would attempt to harass someone and their attorney by publishing personal information. That is pure intimidation. This was an ACCIDENT. Let the insurance companies work it out. That's why you pay them. And when you get into an accident, if you wish to usurp your insurance company and settle on your own, I'm sure they will gladly let you execute the release.

Finally, you said, "You've missed the point completely - this is not about the legal system this is about being a good human being or being a bad human being." Actually, a court pleading - which is the subject of this thread - is ONLY about the legal system.

To repeat, my point has been that this is an insurance company's attorney defending their client. All sorts of accusations are and will be thrown around during the early stages of litigation. The very process you criticize is intended to discover the facts and provide a platform for appropriate compensation.

Posted by POGO
a resident of Woodside: other
on Jan 7, 2014 at 11:01 am

Yes. If I recall accurately (it's been several days), an anonymous person posted the driver's personal information as one of the comments in this thread. It was appropriately removed by the Almanac staff.

I'm only glad that everyone took a breath and are letting the courts sort this out.

Posted by Experienced Misdirection
a resident of another community
on Jan 26, 2014 at 1:41 am

He is obviously trying to change the subject of matter, by playing the blame game. He's casting his own shadow of "carelessly, recklessly and negligently" on to the victims. This man is unbelievable, to be so selfish. It's twisted.